In the midst of the American Civil War the Confederate States faced a shortage in almost all goods, including soldiers.
As early as 1863 the suggestion of conscription of free black men and slaves was only somewhat seriously considered to reinforce the CSA’s already small, but ever-dwindling numbers.[i] Some Confederates had called for “negro conscription” as early as 1863, but there was significant resistance by executive leadership. However, eventually, a tiny number of African American men came to be among the Confederate troops but were very rarely (and never officially) armed. The Confederate Congress eventually came to terms with their need for more able-bodied soldiers and passed an act that allowed for the Conscription of free blacks. However, in accordance with Southern views of the proper social and political status of people of color, the law did not allow for black conscripts to apply for an exemption like the ones provided ministers and large plantation owners per the conscription act that pertained to whites. Some free blacks contested their conscription, but the rulings were generally not favorable. One free black Conscript, James Casey, discovered through legal proceedings in the Supreme Court of North Carolina that although he had taken steps to protect himself from the increasingly harsh laws in respect to free people of color in North Carolina, his occupation was at the whim of Confederate leadership. At the end of the Civil War, Confederate Judges made clear that James Casey was a “Citizen of necessity.”[ii]
Major General Patrick Cleburne was one of the first to propose the controversial “negro conscription” measure, and of course, backlash from Richmond ensued.[iii] Alexander Stephens had proclaimed that African American slavery was the “cornerstone” of the Confederacy.[iv] If the Confederacy were to condone arming African Americans, their platform would have crumbled. However, it was not long after that free blacks were compelled by law to serve the Confederate Army in non-combat roles like cooks, and quartermasters. [v] By the middle of the war, the Confederacy seriously grappled with the choice of arming and displacing the majority of their labor force (and consequently their subsequent emancipation after the war) or ultimately losing the war because the Union outnumbered them in troops.
Under surmounting pressure, in February of 1864 the first Confederate Congress passed “An act to increase the efficiency of the army by the employment of free negroes and slaves in certain capacities.”
The law cited the necessary withdrawal of able-bodied men as teamsters and sought to fill that role. The job paid free black men eleven dollars a month.[vi] The offer of paid work in the army could have been appealing to many free blacks in the South; their status as free people put them in a volatile position when it came to civil liberties. After the Fugitive Slave Act of 1850, states that did not allow slavery were no longer safe havens; the law only required someone to be accused of being a runaway slave to be tried and likely sent to the South. As a result, under false claims from “bounty hunters,” some children were kidnapped from their homes, and others were arrested on the street, never to be heard from again. Bills proposed in North Carolina encouraged free blacks to choose a master voluntarily or to leave the state. Some free blacks in North Carolina may have felt pressured by the proposed law and conveyed their labor by deed to white planters. While this placed free blacks in a similar situation as slaves regarding ownership of their labor, it did not change their legal status as a free person.[vii]
In North Carolina, like other Southern states, free people of color experienced some freedoms not afforded their enslaved brethren. However, in North Carolina and elsewhere in the South, free blacks were not viewed as equal to other white citizens. John Hope Franklin, the acclaimed African-American historian, completed groundbreaking research on free people of color in North Carolina. In The Free Negro in North Carolina 1790-1860, Franklin concluded that the free black population in North Carolina, unlike in many other areas was decidedly rural, already making the situation of the free black person in North Carolina a relatively different one. Franklin goes on to lay out the legal challenges that faced free blacks even from the early colonial period. From the required registration of free people to the state requirement that all free blacks be employed.[viii] At North Carolina’s constitutional convention in 1835, James W. Bryan contended that he did “Not acknowledge any equality between the white man and the free negro” rather he stated, “the free negro is a citizen of necessity.”[ix]
The ruling in the petition case of James Casey, a free black man from Haywood County, reflects Bryan’s sentiment. Casey experienced the complications of his legal status as a free man of color when he was arrested and brought into Confederate Service in 1864. Casey had deeded his labor to a Mr. James Robert Love, an extremely wealthy farmer, slave owner, and businessman when he was about 25 years old. [x] Born about 1835 in Western North Carolina, Casey’s color was light, as he is often marked as “mullato” in the census and other records. He was a part of a minuscule population of free people of color in Haywood County. In 1830, the free black population in Haywood County was only 63 people and continued to decline over the next 30 years until 1860 there were only 14 free people of color in the area.[xi] Casey was first individually named in the census in 1860. By that time he had already deeded his labor to James Robert Love and was living in his household with three other young black men (two of the men are presumably his brothers) working as farm laborers.[xii]
Given the overall perceptions of free blacks in North Carolina, it is not surprising that James Casey sold his labor to J.R Love. Casey, like other free blacks, probably resorted to mortgaging his life for 99 years to secure himself. It could have helped him to avoid some of the suspicion and restrictions placed upon him by the increasingly strict laws in North Carolina regarding free blacks. Although Casey was in a region of North Carolina where large-scale insurrection was not a general concern for the population, the climate was not favorable, to say the least. In 1824, nineteen people from Buncombe County (just east of Haywood) filed a petition with the North Carolina General Assembly requesting that a tax of fifty dollars per annum be imposed on free blacks, in part, because they “infuse corruption and a spirit of insubordination into the slaves.” [xiii] By 1858, the North Carolina General Assembly had tightened restrictions of free blacks even more by passing “A Bill Concerning Free Persons of Color.” The bill restricted the movement of free blacks into the state and allowed two years for all free people of color in North Carolina to go elsewhere.[xiv] A similar proposed bill would have made it an option for free people of color to denounce their freedom and select a master so that it would have been legal for them to remain in the state. [xv] Ninety-three citizens of Buncombe County represented that they heartily supported the proposed measure.[xvi]
On September 10, 1863, Casey was arrested by Confederate Lt. Robards under the pretense that he was liable to serve in the Confederate army per the conscription act passed in February earlier that same year.
Casey contested his conscription on the basis that he had bonded his labor to Mr. Love for a term of 99 years, essentially for life, and thus was not a truly free man and therefore liable to conscription.[xvii] After a case in County Court and a subsequent appeal to the North Carolina Supreme Court, it was decided that Casey, although he had deeded his labor to J.R Love for a “valuable consideration” for a term of 99 years, did not cease to be a free man in the eyes of the law. [xviii]
Casey’s effort to legally protect himself in a political climate that became increasingly hostile to free and independent blacks was futile. In County Court, Judge Reade granted Casey’s request for a writ of habeas corpus that required Lt. Robards to appear before the Court to hear the case. After the proceedings, it was decided that per “An Act to increase the efficiency of the army by the employment of free negroes and slaves in certain capacities” he was, in fact, liable to conscription. Casey appealed, faced again with his complicated legal status. Judge Manly observed, “that the petitioner can only maintain his suit under the presumption that he is a free man, there is no middle ground upon which he can stand.”[xix] If Casey petitioned that “the effect of the deed to Love is to degrade him from the condition of a free man,” then he thereby reduced himself to a slave who could not legally petition in court.[xx]
James Casey’s petition put Confederate views on property ownership to the test. The executors of the J.R Love estate (including William Holland Thomas, his son-in-law and the Chief of the Cherokee Nation) claimed James Casey as obligated by deed to work for the family for the term it dictated. The deed essentially meant that the Love estate owned Jame’s Casey’s Labor. However, the Confederate army was wearing thin and required the labor of free blacks to replace able-bodied teamsters and engineers. After his conscription, Casey found himself in a legal tug of war between rich white planters and the needs of the Confederate Military.
Ultimately, James Casey’s fate came down to the whims of the Confederacy’s Secretary of War and the President, and not the property rights of the executors of J.R Love’s estate. The February 1864 act provided,
That the Secretary of War or the commanding general of the trans-Mississippi department, with the approval of the President, may exempt from the operations of this act such free negroes as the interests of the country may require should be exempted, or such as he may think proper to exempt, on grounds of justice, equity or necessity. [xxi]
The Secretary of War could have granted an exemption to Casey on the basis that his labor was more necessary on the home front, but there was no such waiver. Some residents of Catawba and Burke counties pleaded to the North Carolina General Assembly in 1862 not to take any more men out of the state to fight in the war because “there is but few slaves,” and “the country is already full of widows and orphans of Volunteers and conscripts.” The women further expressed that they feared if they lost more young men they faced famine and starvation.[xxii]
Even as the people on the home front in North Carolina fell into suffering, James Casey was charged to go where he was most necessary.
By the time James Casey was called to serve in the Confederate Army, the South was at nearly full conscription. Exemption from service was rare even if that meant sacrificing the welfare of Confederate citizens. North Carolina lost no less than 33, 000 men over the course of the war; taking an enormous toll on the citizens. [xxiii]
When The Supreme Court of North Carolina heard Casey’s appeal they saw two questions to be answered. First, was Casey liable to the Conscription act passed on February 19, 1864, and second, was he as a free man an equal citizen who, “must be put into the army upon a footing of equal rights.” [xxiv] Under the conscription law pertaining to white men passed in February of the same year, white men who had particular involvements in agriculture or who had important skills that they could contribute to the war effort from home could have been exempted from military service. [xxv] However Judge Manly ruled, “When we consider the differences, before the law, between the social and political conditions of the races, how it has been uniform policy to keep them separate socially, the law appears to be now eminently proper… and necessary to preserve the homogeneity of our social fabric.” [xxvi] Manly thereby solidified Casey’s conscription even further such that he was left with less legal power to further petition his conscription as any other free man would.
As the Civil War came to an end, the Confederacy, outnumbered from the beginning, passed a law that ordered the conscription of free black men and some slaves to serve the army as teamsters, engineers, and other lesser, non-combat positions. James Casey had, in practice, given up his natural born freedom in an attempt to secure himself in an increasingly harsh political and social climate for free blacks in North Carolina, but still found himself at the will of the State in such an ambiguous case. [xxvii] Judge Manly’s ruling reflected the attitude expressed by James W. Bryan at the North Carolina constitutional convention, that he did “not acknowledge any equality between the free negro and the white man,” rather he maintained “the free negro is a citizen of necessity, and must, as long as he abides among us, submit to the laws which necessity and the peculiarity of his situation compel us to adopt.” [xxviii]
Although James Casey was a free man, his legal status North Carolina was subject to the whims of white leadership and courts. Manly made his ruling on race, not citing a specific case, rather he observed, “Congress did not give the authority to dispose of the negro conscripts as the act prescribes, but there was also fitness and propriety in such disposition, arising out of the condition of the society amongst us, and all previous legislation in respect to the negro race.” [xxix] Ultimately, James Casey was remitted to Lt. Robards and put in the service of the Confederate Military. Even though Judge Manly issued in his ruling that he had treated the case “as the case of a white man,” Casey’s race contributed to the decision to remit him to Lt. Robards.[xxx] Under the circumstances presented Casey was, because of his color, put to service as a Confederate conscript rather than continuing to live as a free black citizen when the Confederacy desperately needed troops.
The legal climate for free people of color changed over the course of the 19th century as ideas about race and social order developed in the South. As the Civil War drew neigh, new rules and regulations in respect to free people harshened along with public opinion. In the end, James Casey served in some capacity with the waning Confederate army, but did so under the social circumstances allowed him because of his race. James Casey, neither fully slave nor fully free experienced the American Civil War as a “citizen of necessity.”
[i] Bruce Levine, Confederate Emancipation: Southern Plans to Free and Arm Slaves During the Civil War, (Oxford: Oxford University Press, 2007) 2.
[ii] North Carolina Constitutional Convention, Proceedings and Debates of the Convention of North Carolina, June 1835, (Raleigh: State of North Carolina, 1836) 68-69.
[iii] Levine, Confederate emancipation, 4.
[iv] Alexander Stephens, “Cornerstone Speech,” Savannah, Georgia, March 21, 1861. Civil War Trust. (Accessed 4/1/16). http://www.civilwar.org/education/history/primarysources/alexander-h-cornerstone.html?referrer=https://www.google.com/.
[v] 1st Congress of the Confederate States of America, February 1864, “An act to increase the efficiency of the army by the employment of free negroes and slaves in certain capacities.” Documenting the American South, University of North Carolina Chapel Hill. (Accessed 4/1/16). http://docsouth.unc.edu/imls/23conf/23conf.html#p235.
[vi] 1st Congress of the Confederate States of America, February 1864, “An act to increase the efficiency of the army by the employment of free negroes and slaves in certain capacities.”
[vii] The State of North Carolina, North Carolina Reports: Cases Argued and Determined in the Supreme Court of North Carolina vol. 60, “Casey vs. Robards,” (Raleigh: State of North Carolina, 1878) 434.
[viii] John Hope Franklin, The Free Negro In North Carolina 1790-1860, (Chapel Hill: University of North Carolina Press, 1995) 59-64.
[x] Haywood County Register of Deeds via Ancestry.com, Certificate of Death, James Casey, 1918.
[xi] United States Census Bureau via University of Virginia Historical Census Browser, Haywood County North Carolina, 1830- 1860. (Accessed 4/1/16). http://mapserver.lib.virginia.edu/php/start.php?year=V1860.
It is interesting to note that all of those free people of color registered on the census in Haywood were “mullato” and James Casey was marked as “black.” Whoever reported his name to the census must not have considered Casey to be a free man, or there is an error in the reporting of the numbers.
[xii] United States Census Bureau via Ancestry.com, James R. Love, Haywood County, North Carolina, 1860.
[xiii] The Race and Slavery Petitions Project, Digital Library on American Slavery. Raleigh, North Carolina, The North Carolina Department of Archives and History, Petition 11282406, William Coleman, James Patton, George Swain, et. al., North Carolina General Assembly, Session records, Senate Committee on Internal Improvements, Misc. Reports November 1824- January 1825, box 4. (Accessed 4/1/16). https://library.uncg.edu/slavery/petitions/details.aspx?pid=865.
[xiv] North Carolina General Assembly, “An Act Concerning Slaves and Free Persons of Color” Revised Code #105. http://docsouth.unc.edu/nc/slavesfree/slavesfree.html.
[xv] Franklin, The Free Negro in North Carolina, 214.
[xvi] Race and Slavery Petitions Project, Digital Library on American Slavery. Raleigh, North Carolina,North Carolina Department of Archives and History, Petition 11285805, James Patton et. al. General Assembly, Session Records, House Committee Reports Nov. 1858 through February 1859, Box 9. (Accessed 4/1/16). https://library.uncg.edu/slavery/petitions/details.aspx?pid=1030.
[xvii] The State of North Carolina, North Carolina Reports: Cases Argued and Determined in the Supreme Court of North Carolina vol. 60, “Casey vs. Robards,” (Raleigh: State of North Carolina, 1878) 434.
[xviii] “Casey vs. Robards,” 435.
[xix] “Casey vs. Robards,” 436.
[xx] “Casey vs. Robards,” 436.
[xxi] 1st Congress of the Confederate States of America, February 1864, “An act to increase the efficiency of the army by the employment of free negroes and slaves in certain capacities.”
[xxii] Race and slavery petitions
[xxiii] North Carolina Department of Natural and Cultural Resources, “North Carolina Civil War Death Study: Assessing Troop Losses 1861-1865,” NC Civil War 150, (Accessed 4/1/16). http://www.nccivilwar150.com/features/nc-civil-war_death-study.htm.
[xxiv] “Casey vs. Robards,” 437.
[xxv] 1st Congress of the Confederate States of America, Laws of Congress in Regard to Taxes, Currency and Conscription Passed February 1864, University of North Carolina Chapel Hill Documenting the American South, (Accessed 4/1/16). http://docsouth.unc.edu/imls/lawsofcong/lawsofcong.html.
[xxvi] “Casey vs. Robards,” 438.
[xxvii] US Census Bureau via Ancestry.com, Haywood County, North Carolina, Harriet Cazey, 1830.
[xxviii] North Carolina Constitutional Convention, Proceedings and Debates of the Convention of North Carolina, June 1835, (Raleigh: State of North Carolina, 1836) 68-69.
[xxix] “Casey vs. Robards,” 440.
[xxx] “Casey vs. Robards,” 440.